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Critics claim copyright treaty would eliminate 'fair use'

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Critics claim copyright treaty would eliminate 'fair use' 06/15/98 WASHINGTON, D.C.--The House Subcommittee on Commerce and Telecommunications is currently reviewing…

Critics claim copyright treaty would eliminate ‘fair use’

06/15/98

WASHINGTON, D.C.–The House Subcommittee on Commerce and Telecommunications is currently reviewing a bill that some critics say would effectively make online libraries extinct by eliminating the copyright law’s “fair use” doctrine for on-line material.

The bill, called the WIPO Copyright Treaties Implementation Act passed the Senate on a 99-0 vote. It already has been approved by the House Judiciary Committee.

In early June, the House subcommittee heard testimony from a panel of 12 witnesses who spoke out on the potential ramifications of the bill. Prof. Robert Oakley, Library Director at Georgetown University Law Center, stated that “this legislation threatens to obliterate the right of libraries to serve their patrons and of others to make use of exceptions and limitations in the Copyright Act.”

Much of the disapproval of the WIPO bill stems from section 1201(a)(1), which stipulates, “No person shall circumvent a technological protection measure that effectively controls access to a work protected under this title.” This language, critics say, could eliminate or greatly curtail the “Fair Use” exception that is essential to the work of educators, researchers and newsgatherers alike. Express language is needed in the bill to ensure the survival of the doctrine, they argue.

The “Fair Use” exception allows reproduction of copyrighted works “for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research.” The exception may be considered a “circumvention” tool under the proposal, according to opponents of the bill.

Under section 1201(a)(1), colleges and universities could be criminally liable for supplying via on-line technologies copyrighted material to anyone requesting it, including professors, students, reporters and the general public. The panelists testified that this is currently a common function of libraries with electronic databases.

The American Library Association released a statement noting “The electronic equivalent of today’s reference books might be available to students and patrons only on a pay-per-use basis.” Under the current laws a library purchases materials and anyone wanting to review them can do so free of charge.

The concern about the “Fair Use” doctrine has not gone unnoticed by the lawmakers. In his opening statement, Sen. Rick Boucher (D-Vir.) stated that he had already introduced another bill, along with Sen. Tom Campbell (R-Cal.), to amend the provisions of the WIPO bill and make the “Fair Use” doctrine applicable to on-line material. The Digital Era Copyright Enhancement Act, according to supporters, would maintain balance in the Copyright Act while fully protecting the “Fair Use” doctrine and other exceptions to proprietors’ rights. (H.R. 2281; H.R. 3048)